1. THE ENQUIRY
Can beauty contribute to a global language for environmental law? Scholars of transnational environmental law have generally overlooked this question, perhaps because of apprehensions about the seeming frivolity of such an inquiry, the difficulty of articulating beauty as a legal standard, or concerns about the degree to which aesthetic values such as beauty are subjective and often imbued with sexist, racist, colonialist, and class-privileged ideas. We contend that while these concerns are legitimate, beauty nevertheless is a vital element in the pervasive human desire for aesthetic experiences in nature, and it must be reckoned with in environmental governance. Natural beauty may be a matter of cultural relativism but the law should help to forge socially defensible judgements about beauty in environmental decisions through informed participatory processes. Concomitantly, through its capacity to engage people’s emotional commitments to environmental causes, beauty can strengthen social action and political willingness to legislate.
An underlying assumption of our article is the value of a lingua franca for environmental law. Given that environmental impacts often have transnational or regional dimensions, we need a common understanding of relevant issues and solutions across societies and jurisdictions, and this includes a shared terminology. The 2015 United Nations (UN) Sustainable Development Goals (SDGs) evoke this ideal,Footnote 1 but it runs through the history of environmental law. The 1972 UN Educational, Scientific and Cultural Organization (UNESCO) Convention concerning the Protection of the World Cultural and Natural Heritage (World Heritage Convention)Footnote 2 emphasizes the protection of natural and cultural heritage of ‘outstanding universal value’,Footnote 3 which necessarily acknowledges that such a value can be shared by humanity across different cultures and histories. In short, finding common ground contributes to more effective environmental governance, such as by reducing costly disputes and motivating collective efforts. On beauty specifically, evolutionary psychology suggests that humankind has some shared aesthetic preferences, as in landscape features and animal characteristics, which could provide the kernel for a global language of natural beauty.Footnote 4 Concomitantly, literature suggests that humankind possesses a shared capacity for moral judgements, which could be further building blocks for a shared aesthetics that values nature beyond its material benefits.Footnote 5
Beauty is one of the seven basic ‘goods’ that bring value to human lives, which the law should protect and nurture, according to legal philosopher John Finnis, a natural law theorist.Footnote 6 The opportunity for aesthetic experiences, and experiencing beauty specifically, bring pleasure and value to our lives beyond basic living needs. Environmental law, however, remains hindered by an incomplete language to meet this goal, despite progress made through the discourses of ‘sustainable development’, ‘intergenerational equity’, ‘common heritage of humankind’, and other meta-norms. These discourses have helped in building some common ground, but gaps and weaknesses remain because of vague or inconsistent terminology, the presence of rival concepts and, crucially, the habitual reliance on scientific and economic methodologies that can fail to elicit deep emotional commitment to the issues. This problem is not unique to environmental law as other fields of governance, such as international human rights, are permeated by different languages that reflect rival values or perspectives. However, exploring the wider significance of this issue in other legal fields and comparing them with environmental law is beyond the scope of our article.
Beauty is a subset of the wider domain of aesthetic values, and commentators have long identified it as the most enduring and significant aesthetic value, especially concerning the natural environment.Footnote 7 Much of the ensuing discussion about beauty is thus framed by the broader scholarly debates about aesthetics. As a noun, aesthetics relates to the philosophy of the interpretation of art and nature. As an adjective, and in the vernacular, it describes human perception and emotional responses to such phenomena.Footnote 8 All individuals have the capacity for aesthetic judgements. Could it thus be concluded that a Nigerian and German, for example, can similarly admire a beautiful roaring waterfall or an exquisite bird of paradise despite not understanding one another’s tongue, and that this mutual affection might translate into demands for stronger legal protection? Such a concept would be too simplistic because, although nature has tangible aesthetic properties – the sounds of birds or the colours of plants, for instance – these qualities also involve matters of human interpretation, and our judgements about beauty (and other aesthetic values) are culturally mediated and function alongside competing values such as science and economics. Yet, we argue it is possible for beauty to play a larger role in environmental governance in certain circumstances, especially with community-based and activist arts, and allied institutional reforms that foster public participation.
Beauty is the most commonly distilled aesthetic value in environmental law because it is considered a positive value through which to protect and nurture our environment. The World Heritage Convention, to illustrate, safeguards ‘areas of outstanding universal value from the point of view of … natural beauty’,Footnote 9 and the United Kingdom’s (UK) National Parks and Access to the Countryside Act 1949 was established ‘for the purpose of preserving and enhancing the natural beauty’.Footnote 10 Our surroundings can also evoke the alter ego of beauty – namely, the ‘ugly’, such as industrial blight and unsympathetic architecture. Hence, aesthetic values across wild and human-modified environments are diverse and affiliated to our varied emotional portfolio. This article focuses on beauty not only because of its explicit affirmation in environmental law but also because of its powerful hold in human culture and psychology. Beauty is valorized in many realms of our lives, including romantic courtship, fashion, housing design, and recreational pursuits from a sunset beach stroll to an art gallery tour.Footnote 11
Given that economic and scientific dogma often dominate environmental governance, it should not be a surprise that most environmental lawyers ignore natural beauty, along with other aesthetic values. Exceptions to this indifference include John Costonis, whose Icons and Aliens Footnote 12 investigated aesthetics in urban development regulation in the United States (US), and Tim Bonyhady’s The Colonial Earth,Footnote 13 which examined artistic portrayals of the Australian landscape in the emergence of its environmental laws. Andreas Philippopoulos-Mihalopoulos touches on aesthetics in his extensive writings, including Spatial Justice.Footnote 14 Cultural heritage law scholarship also sometimes engages strongly with aesthetics, such as the work of Ben Boer.Footnote 15 The occasional journal article ventures into this subject, such as Alice Palmer’s analysis of aesthetic criteria in World Heritage Convention decision making,Footnote 16 and Afshin Akhtar-Khavari’s interpretation of Edvard Munch’s The Scream as an exemplar of our primeval fear of nature’s darker forces.Footnote 17 The absence, however, of more literature in this field betrays the sentiment felt by many that aesthetic values, including beauty, are at best marginal considerations and at worst superficial criteria unable to match the ‘objectivity’ and ‘rigour’ of science or economics that dominate much environmental law.
Beauty, we believe to the contrary, provides an important modality or process of building relationships with nature. Aesthetic values matter for their potential to foster less materialistic environmental relationships, to elicit new insights into natural values and impacts, and to generate ethical constraints on human environmental behaviour. Artists can creatively represent environmental values and impacts that may be imperceptible or marginalized. In Slow Violence, Rob Nixon encourages artists to deploy ‘their imaginative ability and worldly ardour to help amplify the media-marginalized causes of the environmentally dispossessed’.Footnote 18 Similarly, Benjamin J. Richardson in Time and Environmental Law believes that ‘artistic gestures [can] vividly arouse’ public awareness of ‘our strained relationships with nature that need repair’.Footnote 19 Of course, aesthetics with or without artistic intervention cannot comprehensively underpin all environmental governance, not only since it needs other inputs such as scientific knowledge (for example, to understand how to mitigate climate change) but also because aesthetic values themselves elicit conceptual and methodological difficulties.
This article is equally attentive to evaluating the obstacles to incorporation of beauty (and, potentially, other aesthetic values) into environmental law. These obstacles principally include:
∙ limitations in the type of information that beauty can convey in environmental decision making, such as for nature conservation or pollution control;
∙ difficulties of codifying beauty into workable legal standards, such as in deciding where to locate wind farms, and furthermore the problems of anthropocentric biases that can result in a legal bifurcation of nature into ‘special’ and ‘ordinary’ beauty categories; and
∙ whether and how beauty can be reconciled with other, non-aesthetic values, notably from science and economics, in environmental governance.
Thus, our enquiry into the role of beauty in environmental law considers both the opportunities and obstacles.
Devoted to mapping ‘big picture’ themes and highlighting examples, this article spans five parts. The next part examines key theories of environmental aesthetics, and beauty specifically. Part 3 evaluates the existing legal recognition of aesthetic values, focusing on beauty, and canvasses several jurisdictions to illustrate broad patterns.Footnote 20 Thereafter, Part 4 evaluates opportunities and obstacles for using beauty in environmental law. The article concludes in Part 5 with advice about the future legal status of beauty.
2. CONCEPTUALIZING BEAUTY IN ENVIRONMENTAL AESTHETICS
To understand how beauty has been conceptualized, we must first delve into its wider framing in the literature on environmental aesthetics. This part highlights the relevance of natural beauty in a range of environmental decision-making contexts, and traces the efforts of scholars and artists to define beauty and to delineate its social purposes.
Environmental aesthetics involve ways of knowing and being immersed in our surroundings, observed Gregory Bateson, one of the great 20th century anthropologists.Footnote 21 His aesthetically conceived ecology postulated that ecosystems are informational and communicating systems, akin to a mind, rather than just mechanical flows of material and energy. To embrace this view, we must recognize ourselves as embedded in that system, argued Bateson. Yet, in our urban demography and globalizing world, this aspiration is not easily realized. The expanding spatial and temporal scales of phenomena – such as the impacts of global warming or marine plastic pollution, which can manifest far from the environs we inhabit – obscure our awareness of the aesthetics of environmental change. The arts, however, can help to enrich how we experience that aesthetically conceived ecology, even on a planetary scale. NASA’s earliest photographs of Earth – most famously, the iconic Blue Marble taken in December 1972 by the Apollo 17 crew – helped to boost the emerging global environmental movement.Footnote 22 Over the past half-century, environmentally focused visual art and music have flourished into diverse genres, which include social activist strands tackling climate change and other sustainability concerns.Footnote 23 Environmental aesthetics, in other words, are experienced through cultural lenses, often intermediated through the arts and linked to other social processes, including the law itself.
The importance of environmental aesthetics to our emotional affinity with nature is recognized by major international environmental organizations. The International Union for Conservation of Nature (IUCN) affirms in its founding 1948 Statute that ‘natural beauty is one of the sources of inspiration of spiritual life, and the necessary framework for the needs of recreation’.Footnote 24 In 1962 UNESCO declared that protecting nature’s beauty was ‘necessary to the life of men [sic] for whom they represent a powerful, physical, moral and spiritual regenerating influence, while at the same time contributing to the artistic and cultural life of peoples’.Footnote 25 Similarly, the 2008 operational guidelines for the World Heritage List refer to ‘cultural landscapes’ that ‘are illustrative of the evolution of human society and settlement over time’.Footnote 26 Yet, we must also acknowledge the reciprocity of this relationship – namely, how aesthetics can motivate humans to feed nature’s wellbeing, perhaps by fostering less materialistic relationships and instilling ethical constraints on human behaviour or decisions. Closer to a more ecocentric stance, the Earth Charter of 2000 declares ‘the protection of Earth’s ... beauty is a sacred trust’ and calls on signatories to ‘secure Earth’s bounty and beauty for present and future generations’.Footnote 27
Yet, different people do not experience beauty or other aesthetic qualities identically, which may have implications for the development of a lingua franca based on such concepts. To illustrate, the famous Mount Fuji astonishes tourists as beautiful scenery but those who practise Shintoism may be drawn more to a different aesthetic trait associated with its spiritual significance.Footnote 28 A similar dyadic interpretation infuses landscapes occupied by indigenous peoples: what might be a beautiful, unpeopled ‘wilderness’ to a foreigner is a cultural landscape to its Aboriginal custodians.Footnote 29 In a 2017 decision of the Supreme Court of Canada, citizens of the Ktunaxa Nation objected to the grant of planning permission for a ski resort, on the basis that the development would drive out the Grizzly Bear Spirit, a principal spirit within the Ktunaxa belief system.Footnote 30 More frequently encountered aesthetic divergences relate to artistic taste: admirers of Rembrandt’s The Night Watch may be repulsed by Marcel Duchamp’s equally iconic urinal.Footnote 31 Modern architecture is often similarly controversial: the Centre Georges Pompidou in Paris (France) and the BT Tower in London (UK) are abhorred and admired in equal measure.Footnote 32
In contrast to the foregoing efforts to understand beauty through a socio-cultural lens, some philosophers of aesthetics have sought to distill the elements of beauty through formalistic principles and models. Their aim is not to study how human beings empirically perceive works of art or natural landscapes but to delineate normatively how they ought to. In the 18th century, William Hogarth postulated that beauty correlates with principles that include uniformity and simplicity.Footnote 33 Edmund Burke linked beauty to the observer’s emotional reactions, such as pleasurable feelings of tranquillity and euphoria, which he contrasted to the discomfort of sublimity, such as the awe felt by witnessing mighty natural forces.Footnote 34 Immanuel Kant focused on having the correct attitude – namely, that appreciation of beauty requires separating aesthetic value from any interest in the object as a means of fulfilling some utilitarian end.Footnote 35 Non-Western cultures have also explored the philosophy of aesthetics. Islamic theologians associate beauty with three structural components – order, wisdom and harmony – as expressed most eloquently in irrigated gardens.Footnote 36 In East Asia, some traditional philosophy emphasizes the oneness between nature and culture, such as the sacredness of landscapes (Shintoism) and spiritual freedom when journeying through them (Daoism).Footnote 37
Theories about environmental aesthetics specifically have surged recently, focusing on what and how to evaluate aesthetic values in the world at large, from rugged wilderness to urban environments. Several distinct themes exist in the literature. One is Arnold Berleant’s call for an ‘aesthetics of engagement’, which stresses a participatory and intimate experience with the subject matter as the best way to appreciate its aesthetic values.Footnote 38 Although his approach helpfully supports greater public participation in direct sensory engagement with our natural surroundings and cultivation of place-based cultural affiliations, the emphasis on personal engagement implies that what and how we aesthetically appreciate nature is just subjective taste; we thus might have no guidance to differentiate between serious and trivial aesthetic judgements. A second, alternate idea is the ‘cognitive’ model, pioneered by Allen Carlson, who asserts that proper aesthetic appreciation depends on a scientific understanding of natural phenomena derived from botany, biology, ecology, and cognate disciplines.Footnote 39 Science, contends Carlson, steers the viewer to the points of aesthetic significance, such as botanical knowledge, which allows the viewer to fully enjoy floristic patterns and colours. However, Emily Brady, among others, cautions that the cognitive model excludes common emotional responses to natural beauty, like observing a golden sunset or thunderous waterfall, the appreciation of which does not necessarily require scientific expertise.Footnote 40
A third understanding of environmental aesthetics is found in the critical, politically charged perspectives which advocate interpretation of aesthetic values that contribute to social change, such as better environmental policies. Activist scholars such as Alan Braddock and T.J. Demos champion social justice and ecological sustainability as vital criteria for how we should view nature’s aesthetics and their depiction through artistic practices.Footnote 41 This stance also is critical of the privileging of Western constructions of ‘nature’ in eco-aesthetics, which can also marginalize the ‘Other’ such as Aboriginal cultural values. Environmental aesthetics, explains Demos, must thus be a way to ‘decolonize nature’ and forge a more egalitarian world.Footnote 42
The role of the arts in mediating our experience of natural aesthetics has a long history. With increasingly fewer people living off the land, we often aesthetically engage with nature vicariously rather than personally – through David Attenborough-narrated films, lavish coffee-table books, or soothing nature sounds CDs. Artistic interpretations of natural beauty through visual art and music have also been conceptualized in the literature around certain artistic conventions and theoretical positions. In the Western world, the Romantic era during the 18th and 19th centuries helped in rendering a more benign view of nature through several pictorial styles.Footnote 43 The ‘picturesque’ iconography is associated with spectacular panoramas such as majestic snow-capped peaks, while the even more dramatic qualities such as a terrifying tempest were associated with the ‘sublime’. Another seminal genre is the ‘pastoral’ landscape, dotted with tidy gardens and rolling pastures, reflecting anthropogenic influences.
With the surge in activist eco-art in the late 20th century, researchers have also enquired into the appropriate purpose of aesthetic experiences. Beginning in the 1960s, the Land Art movement (also known as Earth Art) resisted the commodification of art by abandoning museums and galleries to create monumental landscape projects, such as Robert Smithson’s iconic Spiral Jetty (1970) carved into a Utah lake.Footnote 44 In recent decades eco-art has occupied other public spaces to forge new narratives about global environmental challenges such as climate change and air pollution, as evident in the work of the Climarte group.Footnote 45 Music is also increasingly used to explore natural aesthetics, for reasons that range from cultivating a ‘sense of place’ (via nature soundscape recordings) to musical compositions that aid in social awareness of the environment.Footnote 46 Demos, as noted above, has advocated the arts to forge creative and critical insights that challenge the political orthodoxy of neoliberal globalization and to foster solutions for the planetary environmental crisis.Footnote 47 Further, many environmental organizations use beauty to generate public support for their causes, from saving whales to wilderness.
The aesthetics of beauty have also been investigated intensely with regard to human beings themselves, which illustrates how strongly beauty is culturally mediated. Much literature has sought to empirically validate some universal indicia of beauty across different cultures, of which one identified criterion is facial symmetry,Footnote 48 but other evidence shows sexist and racist influences. Patriarchal cultures have imposed cruel stereotypes of beauty, such as the practice of foot-binding young girls in pre-communist China and corset wearing in Victorian Britain.Footnote 49 Naomi Wolf’s The Beauty Myth argued that idealistic social standards of physical beauty persist because of commercial influences through the ‘beauty industry’.Footnote 50 Racism also influences perception of human beauty, one abhorrent example being the Nazi efforts to breed a purer Aryan race. Thus, while humankind has a shared interest in beauty, its appreciation may be more influenced by cultural context than by the innate qualities of objects.
In addition to philosophical enquiries into appreciation of beauty and environmental aesthetics, researchers have investigated their influence on human environmental attitudes, well-being and behaviour. Studies in environmental psychology highlight how aesthetic stimuli – such as beautiful colours, complexity and fragrance – may reduce personal stress. The Health Council of the Netherlands has found positive associations for the health of people living near attractive greenery.Footnote 51 Research has found psychological benefits associated with a variety of environmental experiences, including visiting city parks,Footnote 52 urban gardens,Footnote 53 and wildernesses.Footnote 54 By contrast, unattractive built environments can overload inhabitants with demanding, stressful, or mundane features. The relevance of such research for our enquiry is that by linking environmental beauty with human benefits we can build a stronger political case for an aesthetics-based environmental law. Also relevant here is social psychology research into how aesthetic values can contribute to pro-environmental behaviour, as explored in Section 4.1 of this article.
The foregoing discussion leads to several conclusions about beauty for environmental governance. Firstly, it is an important social value, but significant debate persists about the appropriate normative criteria for evaluating beauty in environmental contexts. Secondly, interpretation of beauty is culturally mediated, especially through art, which itself is subject to theoretical contestation. Thirdly, aesthetic values, including beauty, can be deployed for utilitarian purposes, from personal therapeutic benefits to political activism. The next part considers how notions of beauty, and sometimes aesthetics more generally, have informed legal governance as a precursor to understanding the areas where further work is needed (Part 4) in order to elevate beauty to a more substantial pillar of environmental governance.
3. LEGAL CONTEXT
3.1. Patterns of Interaction
The law is not external to beauty or other aesthetic values but partakes in shaping their enunciation and meaning, and the law itself has its own aesthetic qualities. These values feature in many contexts governed by environmental law. Proposals to establish wind turbine farms have strained land-use approval processes across Europe and North America because of community uproar over anticipated visual and acoustic impacts.Footnote 55 Perceptions of scenic beauty frequently drive the establishment of national parks, even while indigenous peoples may associate such areas with their ancestral cultural heritage. Indeed, conservation management in Australia and Sweden, among many jurisdictions, is increasingly intertwined with the aesthetic values of indigenous peoples,Footnote 56 whose importance is acknowledged in the UN Declaration on the Rights of Indigenous Peoples,Footnote 57 whereby ‘[i]ndigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditional ... lands’.Footnote 58 Another context is ecological restoration, where regulators must consider future aesthetic values. A challenge found in restoration projects in Scotland and the Netherlands is that some stakeholders find the change towards an ‘untamed’ nature less beautiful than their former bucolic surroundings.Footnote 59 In post-mining rehabilitation, aesthetic values also matter greatly for future land uses and improving the appearance of the landscape, as evident in South Africa’s mining industry.Footnote 60
Nonetheless, while aesthetic values, including beauty, inform many environmental governance contexts, this does not mean that such values are priorities for lawmakers. Instead, scientific and economic precepts dominate environmental regulation for reasons that range from their seeming objectivity and precision in setting legal standards to the political influence of those who promote such disciplines. Any cursory check of environmental legislation reveals so in terms of the frequency of references to ‘economics’ or ‘scientific’ compared with acknowledging aesthetic qualities.Footnote 61 Similarly, listings of threatened species commonly reflect scientific advice on their conservation status rather than their charm or inherent value, while pollution standards generally are based on scientific evidence of potential hazards and the economic costs of alleviating them. The language of ‘beauty’ itself is increasingly missing from environmental governance beyond hortatory statements, as researchers have found in the evolution of UK landscape planning legislation.Footnote 62 The seeming arbitrariness of aesthetic values also frustrates courts where community opinion expects the law to reflect intelligible standards: as one US judge bemoaned, ‘aesthetic considerations are fraught with subjectivity. One man’s pleasure may be another man’s perturbation. ... Judicial forage into such a nebulous area would be chaotic’.Footnote 63
To make sense of these disparate permutations, we can delineate several distinctive ways in which beauty as an aesthetic value interacts with environmental law, namely as: (i) a ‘resource’ for advocates of stronger law; (ii) a substantive element of legal doctrine such as rules or standards that prescribe aesthetic criteria; (iii) an expression of state sovereignty over nature, and thus access to environments for conservation or development purposes; and (iv) an attribute of institutionalized processes, which include courts and public inquiries that deal with environmental law.
3.2. Beauty as an Advocacy Gesture
Proponents of better environmental laws frequently deploy aesthetic criteria, especially beauty, in nature conservation campaigns, to attract political support and community donations. Even the world’s first national park, established at Yellowstone (US) in 1872, owes partly to the painter Thomas Moran and photographer William Henry Jackson, whose enticing images of it helped to win US Congressional support.Footnote 64 They established a precedent, with depictions of scenic wilderness and charismatic wildlife often evident in the communications of contemporary environmental groups. Environmental advocates may also invoke ‘negative’ aesthetics, such as images of unsightly deforestation or pollution, for similar purposes. Greenpeace’s campaign to save whales uses evocative footage to solicit public empathy for their plight.Footnote 65 Campaigns in Australia to stop dams and forestry have deployed evocative imagery of endangered ‘pristine wilderness’, such as Peter Dombrovskis’ photographs of Tasmania’s Franklin River at risk in the early 1980s from a proposed dam.Footnote 66 One consequence is that areas or species that benefit from such tactics may leave ‘ordinary’ (unbeautiful) nature without commensurate legal protection. Another consequence is social; unsightly development may be shifted to areas occupied by less affluent communities. Equally, the discourse of exalted ‘wilderness’ values may exclude their human history.
Some of these tensions are evident in current controversies over wind energy projects, with local communities fearful of the noise or visual impacts of turbines in their vicinity, which might render their environs less ‘beautiful’.Footnote 67 Yet, climate-conscious activists usually advocate wind farms as a source of renewable energy and welcome legislation to fast-track project approvals, as adopted in Ontario (Canada) through the Green Energy Act 2009, for instance.Footnote 68 Conversely, some jurisdictions, such as the state of Victoria (Australia), have given greater weight to the aesthetic concerns of affected local communities.Footnote 69 Difficult issues thus arise over the distribution of the aesthetic, ecological, and economic costs and benefits of wind turbines. We address the problem of how to weigh aesthetic values with other policy criteria proposed for environmental law later in this article.
3.3. Beauty in Environmental Law Doctrine
We now turn to investigate how environmental law doctrine specifically embraces beauty in its rules, standards, and adjudicative practice. The contexts include landscape management, biodiversity conservation, ecological restoration, and pollution control. The law may direct regulators to safeguard extraordinary natural beauty, to curb unsightly developments, or to remediate malodorous pollution that can impair beauty. Statutory references to aesthetic standards are typically cursory, and often framed around general legislative goals rather than practical regulatory standards. For instance, the UK’s Countryside and Rights of Way Act 2000 provides for the designation of ‘area of outstanding natural beauty’ but does not define ‘natural beauty’.Footnote 70 This task thus shifts to supplementary policy guidance as developed through public consultation, with the result that natural beauty is predominantly defined with reference to the ‘character’ of the landscape as evident in hedgerows, mature trees, archaeological ruins, topography, and so on.Footnote 71 As of December 2017, there were 46 areas of outstanding natural beauty in the UK, covering about 20% of its land.Footnote 72 In the US, the Antiquities Act 1906 enables the President to create, by proclamation, national monuments from federal lands to safeguard notable cultural and natural features.Footnote 73 While this statute does not explicitly authorize protection of lands simply for their scenic beauty or other aesthetic attributes, its implementation has extended to such goals.Footnote 74 Other related US legislation which does explicitly identify aesthetic criteria for protecting federal public lands includes the Wilderness Act 1964Footnote 75 and the Federal Land Policy and Management Act 1976,Footnote 76 both of which refer to ‘scenic’ values as goals for protection. Aesthetic values of individual species can also solicit legal protection. The US Bald Eagle Protection Act 1940 protects a creature that has been the country’s national emblem since 1782,Footnote 77 while the Endangered Species Act 1973 protects threatened species for reasons that include the preservation of their ‘esthetic [sic] … value to the Nation and its people’.Footnote 78
Another example is environmental legislation that acknowledges aesthetic values such as beauty, but also with more ambiguity as to whether or how such values provide criteria for decision making. New Zealand’s Te Urewera Act 2014, which gives legal personhood and protection to about 212,000 hectares of a former national park, describes the reconstituted sanctuary as ‘ancient and enduring, a fortress of nature, alive with history; its scenery is abundant with … remote beauty’.Footnote 79 No part of this legislation turns on specific criteria of beauty, and the legislation itself primarily addresses Maori grievances rather than safeguards natural beauty per se.
Another way in which legislation can acknowledge environmental aesthetics is by regulating activities that might infringe them. The Minnesota Environmental Rights Act 1971 provides for civil remedies to protect ‘natural resources’, which it defines to include ‘scenic and esthetic [sic] resources’.Footnote 80 It has been left to the courts, however, ‘to define authoritative criteria for the evaluation’ of such aesthetic values.Footnote 81 Legislation that requires environmental restoration, such as of former mines and brownfield sites, also commonly includes aesthetic criteria: Ontario’s Mining Act stipulates that ‘aesthetics are … [an] important’ objective when planning rehabilitation of former open pit mines.Footnote 82 In practice, aesthetic criteria are applied in rehabilitating Ontario’s numerous abandoned pits and quarries, with one stakeholder observing in 2008 that ‘the main objective of the work is to make the sites safer, more productive, and more aesthetically appealing’.Footnote 83
Protection of beauty also features in the adjudication of disputes. The tort of private nuisance, for example, protects a property owner’s use and enjoyment of her land and requires courts to balance aesthetic considerations, community interests and utility in deciding whether to prohibit activities causing nuisance. Generally, courts are unwilling to accept mere unsightliness as an actionable wrong.Footnote 84 This is exemplified in a recent decision of the Supreme Court of Vermont (US), where the impact of a commercial solar array on an area’s ‘rural aesthetic’ was deemed insufficient to constitute a nuisance.Footnote 85 Instead, private nuisances are decided largely on the basis of olfactory and aural criteria, which can be more objectively assessed and thus avoids courts taking on the uneasy role of ‘arbiters of style and taste’.Footnote 86
Examples do exist of courts being less anxious about engaging with complex aesthetic considerations. In a 2004 decision of the High Court of South Africa the court elevated an aesthetic complaint to one about the value of the property, which enabled it to find that the installation of a thatched roof amounted to a private nuisance.Footnote 87 Courts in the US have adjudicated claims about the beauty of a particular area in relation to zoning decisions and administrative challenges to the exercise of the government power of eminent domain (that is, to take private property for public purposes).Footnote 88 In the growing body of jurisprudence relating to climate change, US courts have acknowledged that ‘aesthetic and environmental wellbeing, like economic wellbeing, are important ingredients of the quality of life’.Footnote 89 Applicants have evoked ugly imagery, such as sewage-soaked carpets and the ‘black dead spikes’ of fire-decimated forests, in order to demonstrate an injury in fact (a requirement of standing) in challenges to state inaction on greenhouse gas (GHG) emissions.Footnote 90 Judicial confidence in introducing aesthetic criteria into legal doctrine is therefore mixed, but not beyond the realms of possibility.
International environmental law also acknowledges aesthetic criteria sporadically. It does so most emphatically in the 1972 World Heritage Convention with ‘outstanding … natural beauty’ being one stipulated criterion for properties to be included in the World Heritage List.Footnote 91 Yet, the term ‘natural beauty’ is defined not in the legislation but through supplementary guidance. UNESCO, which administers the Convention, had advised that there is no formal classification system of ‘natural beauty’, and its Operational Guidelines for the Convention give little elaboration other than to explain that it means ‘exceptional natural beauty and aesthetic importance’.Footnote 92 Similarly, the Council of Europe’s European Landscape Convention of 2000Footnote 93 acknowledges in its Preamble the importance of landscapes of ‘outstanding beauty’ but does not contain any other provision that explicitly refers to aesthetic values, although they certainly can be implied as highly relevant.Footnote 94 Interestingly, the Convention extends to ‘landscapes that might be considered outstanding as well as everyday or degraded landscapes’,Footnote 95 thus recognizing that culturally valuable landscapes that include aesthetic values should not be confined to the stereotypically ‘picturesque’ or ‘sublime’.
3.4. Aesthetics of State Sovereignty over Nature
The third way in which the legal system may interact with beauty and other environmental aesthetics is by embodying them in expressions of state sovereignty. Such use of environmental aesthetics is sometimes ambiguous, equally capable of interpretation as a symbol of respect for nature as of its subjugation. Sovereign legal authority has long been expressed through symbols that draw on aesthetic imagery, which often make reference to beautiful animals and plants. They appear frequently on coats-of-arms, bank notes and coins, and national flags. The Australian coat-of-arms features a kangaroo and an emu, while India’s includes a lion. Greenland has the polar bear, and Swaziland an elephant. National currency is similarly filled with natural iconography, such as the elephants and giraffes on Zimbabwe’s bank notes and the zebra on those of Rwanda. Similarly, many sovereign flags display environmental features associated with their country, such as the maple leaf (Canada), condor (Ecuador), and turtle (Cayman Islands). In some cases, prominent species have become politicized symbols of sovereign authority and national culture, as with the charismatic panda bear for China and its international practice of ‘panda diplomacy’ to win political favours.Footnote 96 Music is also used to articulate sovereign authority, notably through melodious national anthems that affirm state authority (for example, the British anthem beginning with ‘God save the Queen’).
Another aesthetic expression of state authority, albeit one not usually tied explicitly to beauty, is cartography.Footnote 97 Official maps can serve to stamp government authority on territory and subjects, thereby exerting control over any indigenous peoples (for instance, by deeming their lands to be terra nullius) and over ‘wilderness’ and other environmental spaces to be colonized for nation building. By demarcating boundaries and dividing geographies, maps aid in excluding or granting access to natural resources and determining how they will be governed. The spatial representation of nature through maps can violate ecological (and cultural) relationships as legal authority is mapped according to different political and historical exigencies. This is illustrated by the long-standing mismanagement of Australia’s Murray-Darling river basin, which became highly degraded owing to governance arrangements attuned more to the territorial claims of competing Australian state governments than the holistic ecological relationships in the huge river basin.Footnote 98 Maps matter, as they contribute symbolically to the legitimacy of governmental authority. Environmental law thus functions within a cartographic, aesthetic expression of sovereign authority that influences the options available to its regulators.
3.5. Aesthetics in Legal Process and Dialogue
Decision-making fora – such as courts, public inquiries, treaty conferences and secretariats – shape the aesthetics of environmental law. These governance spaces evoke their own material aesthetics and articulate aesthetics-informed dialogue about the issues they consider. This understanding of environmental aesthetics, as embedded in institutionalized relationships of cultural and ecological salience, dovetails with the regulatory insights of others who have touched on this topic, such as Philippopoulos-Mihalopoulos.Footnote 99
The material aesthetic includes public consultation processes that engage participants with aesthetic imagery (through posters and brochures, for example), the decorum of public environmental inquiries and tribunals, such as judges’ attire and courtroom layout (often informal compared with regular courts),Footnote 100 and the presentation of scientific evidence in such fora (including maps and photos of environmental impacts). Public inquiries and environmental assessment procedures sometimes include site visits to places where participants can engage directly with specific aesthetic contexts. For instance, New Zealand’s Waitangi Tribunal – which considers Maori grievances relating to rights to control natural resources and other issues connected with the 1840 Treaty of Waitangi – often makes field trips to sites of significance in claims.Footnote 101 Aesthetic considerations also arise in legal discourses. Much environmental governance emanates from institutionalized community consultation and stakeholder engagement, and these processes can, by virtue of their terms of reference, methods and member composition, become valuable means of articulating and debating aesthetic values. Such institutional processes can have particular traction in communities whose sense of place is at stake. Case law also reveals the presence of aesthetic character in legal reasoning, where legal arguments are embellished with ‘rhetoric, metaphor, form, images and symbols’, explains Desmond Manderson, a leading philosopher on the aesthetics of legal discourse and practice.Footnote 102 Martha Nussbaum, too, believes that law can be investigated as an aesthetic product in its own right as a form of literature, and she encourages greater use of narratives in legal reasoning that evoke sympathy for the cause, which is lacking in other models of legal reasoning with a more abstract and technical style.Footnote 103 The British judge Lord Denning was master of this juridic poetry, evoking iconic visions of bluebell woods and English summertime as a prelude to his legal analysis.Footnote 104
The foregoing remarks obviously cover a lot of ground, so we will illustrate them in more detail with a further example – an important Australian court case over a proposed wind farm. Heard by the New South Wales Land and Environment Court, the litigation pitched the public benefits of green, renewable energy against the aesthetic impacts on the community, which would host 62 wind turbines.Footnote 105 In approving the development, Chief Justice Brian Preston cited the principle of intergenerational equity as a prevailing consideration in a project that would help to address climate change. In gauging the aesthetic impacts on the historic village of Taralga and its vicinity, the court reviewed five photomontages depicting how the turbines might look from different locations. It also gathered evidence from a site inspection and heard from three ‘visual impact assessment experts’. All this was in addition to the assessment of the aesthetic issues during the government’s initial approval of the project, which included an environmental impact study that attracted 218 submissions from the general public and non-governmental organizations (NGOs), of which 165 opposed the project and 23 raised some concerns.
The court grappled at great length with how to comprehend the visual and sonic impacts in legally cognizable language. Chief Justice Preston began by noting that the ‘insertion of wind farms into a rural landscape involves interrupting the rural and natural cohesion of that landscape’.Footnote 106 Yet, he found the evidence of the ‘visual impact assessment experts’ to ‘ultimately [be] of little assistance as there was no agreement between [them]’.Footnote 107 He then considered whether the project could be modified by, for example, fewer or repositioned turbines, but concluded that this might render the project ‘uneconomic’.Footnote 108 He also rejected requests for monetary compensation for property owners affected by the ‘blight’ of the wind farm, concluding that the claim would ‘strike at the basis of the conventional framework of landuse planning’.Footnote 109 The noise impacts, in contrast, were much easier for the court to adjudicate because technology allows for precise quantification of noise levels, and the availability of governance standards are available, such as the ‘South Australian Environmental Noise Guidelines: Wind Farms’, which the court considered.
In sum, the Taralga wind farm case shows how different aesthetic values resonate in legal discourse unevenly, and how the processes used to understand them – spanning site visits, commissioning expert evidence and public submissions – might resist definition or comparison in legally intelligible standards. We take this enquiry further in the following part and evaluate systematically the principal challenges to including beauty in environmental law decisions, and discuss how to overcome them.
4. BEAUTY: A VIABLE VALUE FOR ENVIRONMENTAL LAW?
4.1. What Knowledge and Values Can Beauty Convey to Environmental Governance?
Thus far, we have explained the importance of beauty as a key aesthetic value, emphasizing its socio-cultural context and the philosophical debates that give rise to interpretations of beauty as a decision-making criterion. We have considered how beauty, and aesthetic criteria more broadly, shape environmental law in matters of legal doctrine, political advocacy for stronger laws, institutional processes, and as expressions of state sovereignty. We now turn to the key challenge of ascertaining or evaluating the value of beauty in the context of environmental law. The issue is that a beautiful aesthetic relationship imparts diverse knowledge and values, both potentially positive and negative, for environmental governance. Beauty can fortify emotional and ethical commitments to nature stewardship but can also detract from them and even invite unscrupulous manipulation. Thus, to guide our enquiry we pose three subsidiary questions. Firstly, what knowledge and values can beauty convey to environmental governance, such as for nature conservation or pollution control? Secondly, can, and should, beauty be codified into functional legal standards? Thirdly, can beauty be reconciled with other non-aesthetic values in governance, such as scientific and economic values?
Proponents of natural beauty postulate that it strengthens emotional empathy for environmental causes,Footnote 110 primarily because human beings have biophilic instincts, as Harvard biologist Edward O. Wilson argued.Footnote 111 Eco-art can facilitate such compassion, by shaping ‘public conception of “unknowable” spaces that are beyond the reach and view of the average person’.Footnote 112 Where governance solicits public participation, such as in community-based land care, such emotional connection might nurture participant fidelity.Footnote 113 In contrast, while science and economics supply ample reasons to safeguard nature’s bounty regardless of its ‘beauty’, these phlegmatic disciplines may be less successful in emotionally engaging us. No doubt, science can stir passions, as witnessed by fiery debates over genetically modified organisms and climate change predictions. Economic policy can generate similar visceral feelings, especially regarding poverty and inequality. Yet, these disciplines tend to arouse us over mostly intangible or abstracted concerns, such as fear of health impacts or economic hardship, rather than to focus human emotions on specific localities or landscapes, as do aesthetic values such as recognition of beautiful scenery.
Environmental behavioural models in the social psychology literature have verified empirically how opportunities to appreciate the aesthetic values of nature, especially via artistic representation and community arts, can stimulate pro-environmental behaviour, such as by fostering awareness of the consequences of one’s behaviour; unfreezing ingrained, adverse habits; and fostering social cooperation on environmental challenges.Footnote 114 Beauty may thus fortify ethical constraints on our environmental behaviour. One pioneer of ecological ethics, Aldo Leopold, suggested this when hypothesizing that ‘a thing is right when it tends to preserve the integrity, stability, and beauty of the biotic community. It is wrong when it tends otherwise’.Footnote 115 Thus, natural beauty can be interpreted as a non-instrumental value and, following Akhtar-Khavari, its artistic expressions can help to foster ‘less anthropocentric conceptions of matter and the natural world’.Footnote 116
Such claims, however, depend on the relationships and knowledge of participants in specific contexts. We might even find ‘beauty’ in ghastly environs, depending on the artistic interpretation: the dramatic imagery of industrialized China in Edward Burtynsky’s Manufactured Landscapes Footnote 117 can captivate the viewer with ‘beautiful’ devastation. Wind farms or solar arrays, as noted earlier, can blight the landscape in the eyes of some but beautifully express our commitment to a safer climate. Emily Brady suggests that active community relationships with nature, rather than just observations of nature – such as via ecological restoration and community gardening – can foster eco-centric ethical commitments.Footnote 118 Even so, other grounds for ethical valuation of nature, such as norms for intergenerational equity and intrinsic value, can be justified for consideration alongside aesthetics.
Not only might we perversely find ‘beauty’ in ecological damage; beauty can directly motivate wantonness. Animals have long been hunted for their furs, feathers, tusks and other aesthetic ‘commodities’ in our desire to decorate our bodies and homes, often with the imprimatur of the law. Plants do not escape either, with orchids and other pretty species pillaged by collectors. Trophies of some conquered animals are displayed as taxidermy specimens in natural history museums for the public’s curiosity and pleasure. Blending science and spectacle, taxidermy attained its apotheosis in the 20th century landscape diorama, providing viewers with lifelike, three-dimensional displays of colonized nature.Footnote 119 The persecution of the beautiful inhabits many cultures, not just Western societies; native Americans traditionally adorned themselves with furs and feathers as symbols of chiefly status.Footnote 120 Beauty might thus be a lingua franca of humanity’s desire to dominate nature as much as to protect it.
Even when we wish to restore damaged ecologies, our aesthetic preferences might clash with nature’s best interests. Lay people might perceive a rewilding ecosystem as messy and unruly whereby forest fires, fallen trees, or animal carcasses are left to perform their regenerative roles. British academics Jonathan Prior and Emily Brady identify two such examples in Europe.Footnote 121 One is the Oostvaardersplassen reserve in the Netherlands, where the ‘de-domestication’ of introduced species such as Heck cattle and Konik ponies is occurring on 56 square kilometres of polder reclaimed in 1968.Footnote 122 In the name of rewilding, the wildlife have been left to the vagaries of nature, which in some instances has led to mass die-offs during winter food shortages – a negative aesthetic for animal welfare groups, who unsuccessfully challenged in court the reserve’s management.Footnote 123 Another example is the restoration of Scotland’s Carrifran Wildwood: the project led by an NGO to rewild a denuded valley to its condition of 6,000 years ago has been controversial for some in the local community. They prefer the area’s existing aesthetic and recreational values associated with open, pastoral countryside to the uncertain future aesthetics of a forest that will take a few centuries to fully mature.Footnote 124 This controversy has played out more extensively across the UK, with the National Trust’s conservation of the highland moors of Scotland and Wales being criticized by George Monbiot for the failure to recognize that these areas were once extensively forested until cleared by loggers and farmers.Footnote 125
Finally, the seductive qualities of beauty can manipulate public opinion, as the business sector knows well. In the name of ‘corporate social responsibility’ (CSR) contrived aesthetics figure prominently in campaigns by business to convince consumers to buy products or services for their supposed green credentials. Advertisements for cars, which may highlight their fuel efficiency or other ‘eco-benefits’, typically show drivers cruising unhurriedly through magnificent countryside, as though motor vehicles innately belong with the trees and animals rather than to congested, polluted highways. Deceitful aesthetics can become even more repugnant: the DuPont chemical company, one of the largest US polluters, in 1990 unveiled its new double-hulled oil tankers with advertisements that featured seals and other marine life clapping their flippers or wings in applause to the tune of Beethoven’s Ode to Joy.Footnote 126 As Toby Miller shows in Greenwashing Culture, such hubris is not confined to selling corporate wares.Footnote 127 It manifests in Hollywood’s ‘green celebrities’, whose jet-setting lifestyles impose a huge eco-footprint, and corporate sponsorship of museums, art galleries and other cultural institutions by firms with poor eco-credentials (such as BP’s patronage of London’s Tate Gallery for 26 years in defiance of climate change activists).Footnote 128 Corporate greenwashing should concern environmental lawyers because governance trends over recent decades, which have ceded greater self-responsibility to business actors, amplify risks of unscrupulous practices that can weaken environmental performance.
The foregoing suggests that beauty is a two-edged sword. It enriches environmental decision making from the levels of individual emotional empathy through to social cooperation. However, beauty can also serve less desirable forms of behaviour – corporate greenwashing or community resistance to ecological restoration projects that defy expectations of beauty. These considerations thus highlight the importance of legal institutions in influencing how beauty informs environmental behaviour. For instance, corporate greenwashing can be curbed if laws are enforced to prevent misleading advertising. Public participation in decision making can be critical for mediating a community’s distaste for aesthetically challenging eco-restoration activities. Law can make the difference between the positive and negative connotations of beauty from the perspective of the health of the biosphere.
4.2. Can and Should Beauty Be Codified into Functional Legal Standards?
If a society values its aesthetic relationships with fauna, flora and landscapes, can it codify them into governance standards? Current legal practice suggests the answer is ‘no’ if the expectation is a prescriptive laundry list of beauty attributes. Although human beings show strong propensities to mould their surroundings to their aesthetic taste, from garden design to urban architecture, the language of aesthetics does not easily convert into legal formulae. Indeed, it seems preposterous to imagine rigid legal standards of natural beauty based on tree girth and height, water hue, or species composition. Landscape planning in the UK has largely jettisoned the statutory language of protecting ‘natural beauty’ in favour of landscape ‘character’ assessments.Footnote 129 As noted earlier, in international law the World Heritage Convention’s operational guidelines shed little guidance on what ‘outstanding natural beauty’ means.Footnote 130 Some aesthetic attributes are potentially measurable and definable, such as ambient noise and cultural heritage; yet the quality of beauty itself is more elusive. Many jurisdictions possess detailed regulations on acceptable noise levels because they can be precisely measured through acoustic technologies and explained through expert evidence.Footnote 131 As a result, courts are content to adjudicate private disputes on the basis of quantifiable aesthetic values whereas they tend to eschew ‘notoriously subjective and personal’ discussions about what is ‘pretty’ or ‘beautiful’.Footnote 132 Similarly, laws to safeguard historic heritage, such as buildings and archaeological ruins, use indicia like rarity and representativeness to justify protection, although we may disagree whether such criteria denote ‘beauty’.Footnote 133
More specifically, three challenges must be managed if we expect the law to codify beauty: (i) judgements of beauty are strongly personality- and culture-bound; (ii) standards of beauty change, as societies change; and (iii) codification of beauty might favour protection of ‘special’ nature at the expense of the ‘ordinary’.
Firstly, because of the common assumption that the human response to aesthetics is subjective rather than rational or factual, judgements of beauty can be viewed as deficient. Colloquially, this means ‘beauty is in the eye of beholder’. However, some evidence to the contrary exists. Research suggests a shared, cross-cultural preference for landscapes that resemble Homo sapiens’ evolutionary cradle, the African savannah.Footnote 134 Psychologists also identify a common desire for fractal patterns ‘that repeat at increasingly fine magnifications’, such as clouds, tree lines and coastlines.Footnote 135 Water also is a near-universal attractant for people.Footnote 136 Such commonalities, however, do not preclude cultural variations in aesthetic tastes. As noted earlier, we disagree on wind farms, and indigenous environmental managers can read different aesthetic values in landscapes to their non-indigenous counterparts. All this is apart from the underlying uneasiness that many legal theorists, from ‘Crits’ to Legal Realists, have with any belief that the law can objectively reflect social norms in unequal and pluralistic societies.Footnote 137 Thus, judgements of beauty seem to have a biological basis but can manifest in diverse ways in cultural contexts.
Secondly, because standards of beauty change, the question arises whether the law should follow or shape aesthetic preferences, especially given that they can shift quite dramatically, as the following anecdote shows. The Tasmanian devil (Sarcophilus harrisii), inhabiting the Australian island of Tasmania, was in the 19th century described by one colonial writer as a ‘very ugly, savage and mischievous little beast’,Footnote 138 and had incurred private and government bounties to hasten its demise. Yet, the marsupial carnivore is now a beloved tourist ambassador and in 2015 became the state’s official animal emblem. The species received legal protection in 1941 owing to its rarity, but this had seemingly little impact on its aesthetic appeal, which has only shifted decisively into positive territory over the last few decades. A similar story could be told about the European wolf, now enjoying a renaissance in countries where until recently it was persecuted as vermin.Footnote 139 The law is not irrelevant to these shifting aesthetic relationships, yet neither can it be particularly instrumental if its role is simply to prescribe an animal’s conservation status (pest or protected) rather than to cultivate community knowledge about wildlife and its stewardship.
Thirdly, attempting to codify beauty carries the risk of stratifying nature into ‘special’ versus ‘ordinary’ categories, to the potential detriment of the latter.Footnote 140 The aesthetic values that tend to captivate us most are frequently associated with ‘specialness’ – Mount Fuji, the Grand Canyon, the Pyramids of Giza. The World Heritage Convention and its domestic law variants evoke that sentiment, and we can hardly deter societies who wish to protect their most esteemed natural and cultural heritage. However, ‘specialness’ has drawbacks: species should be protected before they become so endangered or rare as to move us; and pretty landscapes are not necessarily more ecologically valuable than the ‘mundane’ grasslands or swamps.Footnote 141 ‘Specialness’ should also trouble us if it serves to bifurcate the human and natural worlds. Even human-dominated urban landscapes can provide refuges for resilient wildlifeFootnote 142 and, conversely, nature is a cultural landscape, not a wilderness. The ‘special’ versus ‘ordinary’ bias in judgements of natural beauty also highlights that anthropocentric taste can be damaging when determining the level of environmental protection. Beauty may thus amount to no more than another human-serving, utilitarian criterion, at odds with the push by deep ecologist thinkers to respect the intrinsic values of nature.Footnote 143
Accordingly, if we are to leverage action through environmental aesthetics, we must cultivate beauty or other aesthetic values more widely than just within nature’s ‘special’ enclaves. Artists can aid here by helping people to re-imagine aesthetic values and relationships in our environs: some artists have photographed amazing beauty in obscure fungi on the forest floor or recorded evocative nature soundscapes,Footnote 144 while others have enlightened us about the character of humble marine invertebrates rather than majestic whales,Footnote 145 or revealed the evocative and ephemeral impacts of human breath on natural materials like limestone.Footnote 146 Furthermore, artist collaborations with environmental lawyers and political groups, such as the Climarte group in Australia,Footnote 147 show how environmental art can occupy public spaces to forge new socio-legal narratives about global environmental challenges and solutions.
In meeting the foregoing three challenges, it becomes clear that the law seemingly cannot codify timeless and universal standards of natural beauty; however, that does not mean that beauty cannot be an important pillar of governance for a given community at a specific point in time. Fiona Reynolds’ recent book The Fight for Beauty gives examples of how some British communities have cited beauty to improve environmental governance, such as their successful campaign in the 1980s to stop forestry authorities creating ugly (and biologically damaging) conifer plantations on moorland landscapes.Footnote 148 Likewise, communities across Europe have stopped wind farms in EU Natura 2000 sites, in which aesthetic and biological criteria have dovetailed.Footnote 149 It would seem, therefore, that beauty can be a positive lingua franca in specific legal contexts even if it cannot be a global language.
4.3. Can We Reconcile Beauty with Non-Aesthetic Values in Environmental Governance?
There are clear challenges for beauty to become its own global language, and we must further acknowledge that obstacles exist to beauty ‘communicating’ with the various languages that inhabit environmental law, notably the natural sciences and economics that commonly occupy its centre stage. Their vernacular – evoked through concepts and methods such as the precautionary principle, conservation status, cost–benefit analysis, and financial incentives – not only neglects aesthetic values but may also conflict directly with them. Yet, public participation and social justice are strongly endorsed values in many legal instruments, such as the UN Economic Commission for Europe Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters (Aarhus Convention).Footnote 150 Hence, it would be problematic to ignore the popular interest in experiencing aesthetic values or to reserve judgements of beauty to any self-proclaimed experts of aesthetic taste.
To illustrate this quandary, let us briefly return to the Australian wind farm litigation discussed in Section 3.5. The court had to adjudicate over the alleged visual and acoustic sequelae of proposed wind turbines, with such impacts weighed against other law-mandated considerations, which included biodiversity impacts (including bird strikes), the provision of renewable energy to combat global warming, and possibly non-environmental considerations such as job creation. Clearly, the court had a daunting task. Economists like to believe that they can reconcile such disparate factors through cost–benefit analysis, yet such approaches are problematic because of the necessary human judgements (as with beauty preferences) in determining the monetary values to assign.Footnote 151 Conceivably, the court could have come to a variety of decisions, ranging from prioritizing the aesthetic impacts to ignoring them. Legislation could make life easier for judges by ranking in advance the relative importance of various factors, but judicial discretion can never be entirely eliminated, and local and novel circumstances frequently require bespoke solutions.
The problem of reconciling divergent values in legal governance is brought into sharp relief by systems theory, which conceptualizes modern society as acephalous, centrifugal and polycentric, functioning through semi-autonomous subsystems such as the market and government bureaucracy, each with its own language and protocols.Footnote 152 Sociologist Niklas Luhmann describes these subsystems as ‘autopoietic’, implying that each has evolved its own lingua franca and therefore can respond to issues defined only within that language.Footnote 153 These conditions make it difficult for society to govern environmental challenges holistically through different subsystems, including science (ecological knowledge) and market forces (economic values). In response, ‘reflexive law’ theorists Gunther Teubner and Eric Orts propose a model of governance that eschews expectations that the law, as a subsystem itself, can meld all other subsystem values into a single modality.Footnote 154 Instead, the law should stimulate a culture within companies, government agencies and other actors that encourages internal learning and behavioural change. To illustrate this process, the law could oblige companies to report publicly on their environmental performance, and that reporting process might in turn encourage corporate managers to learn more about their firm’s environmental impacts, and then their financial implications for the business, and finally to take corrective action. All this would occur without top-down edicts from the regulator to reduce pollution, or whatever the desired environmental outcome. Systems theory, however, does not suggest rigid boundaries separating different spheres of society but rather maintains that crossovers depend on finding common language or means of translating different ideas.
So, what would the foregoing mean for the incorporation of aesthetics with other factors in environmental regulation? Bricolage governance might follow through process-oriented standards, such as public inquiries, that foster dialogue among various constituencies representing aesthetic values, scientific expertise, and economic incentives. Yet, this could easily lead to outcomes that favour the most well-resourced and ‘noisy’ advocates. Equally problematic would be to commodify environmental aesthetics into the language of economics, a trend already evident in CSR ‘greenwashing’, which can lead to unacceptable ecological impacts – for instance, national parks become playgrounds for eco-tourism rather than biodiversity stewardship.
A more productive communicative alliance might ensue through the involvement of artists as interpretative intermediaries across economic, scientific and cultural domains. Evidence already exists of this productive synergy. Recent eco-documentary films such as Plastic Ocean (exposing marine plastic pollution) and The End of the Line (challenging global overfishing), as well as older films like Al Gore’s Inconvenient Truth (addressing climate change), have become a popular strategy for artists and scientists to shape public discourse collaboratively.Footnote 155 Likewise, the collaboration between the London-based artist Alex McKenzie and scientist Miranda Lowe from the Natural History Museum has successfully forged new interpretative guidance on coral reefs and their need for greater protection.Footnote 156 Such collaboration, in fact, has much older vintage: artists regularly joined scientists in the ‘Age of Discovery’ of European overseas exploration, with artistic renderings of newly discovered plants and animals, and landscape drawings, that were instrumental in the dissemination of scientific knowledge.Footnote 157 These partnerships, no doubt, may also foster narratives that marginalize certain perspectives and issues. This suggests that the law must help to structure interdisciplinary dialogue through transparency standards and interpretative guidance, on which the conclusion to this article further reflects. The law does not sit outside these collaborative ventures. Social activism is fostered within engineered spaces such as public museums, art galleries and civic parks, and these spaces are created and supported by governments through land-use planning schemes, arts funding, freedom of expression laws, and diverse other mechanisms.
5. CONCLUSION
Some of the foregoing discussion might lead one to conclude that beauty should be banished from environmental law, but that is not our intention. Aesthetic taste is undeniably deeply ingrained in human nature, but manifests diversely through personal and cultural contexts. Nature is more than a material resource for economic sustenance, as it partakes in aesthetic relationships the emotional and ethical dimensions of which can improve humankind and our fellow creatures with whom we share the biosphere.
The purpose of this article is not to ‘solve’ how environmental law should deal with natural beauty, but rather to map the key issues, challenges and future directions. We probably cannot codify environmental beauty into any stable or precise legal formulae that have timeless or universal application. However, sometimes a specific community will articulate and deliberate over a particular aesthetics-based environmental position – such as to oppose an ugly waste dump or to conserve a treasured landscape – to which the law can respond. Hereby, a lingua franca arises, albeit not on a global scale, and the community’s concerns can be codified into legal norms through the terms of, for example, a pollution permit, development consent or land-use plan.
Still, we should not be despondent about the absence of a lingua franca of beauty in other contexts, and indeed some reasons exist why we might avoid trying to create one. Acknowledging the wonder of our world and being open to different aesthetic interpretations of natural beauty is surely beneficial, just like the adaptive and dynamic properties of the ecosystems that the law should protect. Seeking agreement on what is beautiful might unhelpfully halt the evolution of those values in dealing with new contexts and challenges, such as how to find beauty in a future world adversely altered by climate change.Footnote 158 Science and economics must also be part of the conversation here rather than pushed into separate silos: science can help in alerting us to the value of ‘ordinary’ nature, while economics illuminates the financial winners and losers. The arts must also partake, by marrying different fields of knowledge and raising public awareness of and participation in environmental aesthetics. As arts theorist T.J. Demos recommends, ‘the artist [who] merely draw[s] attention to the problem is not enough; what is needed is further collective mobilization to pressure government institutions’.Footnote 159
The law cannot avoid its responsibilities here. Even where it is neither possible nor desirable to articulate precise definitions of what is beautiful, the law can help society to express its aesthetic relationships with nature. By setting democratic and transparent process standards and interpretative guidance, communities are empowered to know their surroundings better and engage in richer dialogue about aesthetic values. Public hearings and environmental assessment procedures provide a starting point, and indeed are already commonly used in some jurisdictions, such as in landscape planning in the UK. Further, participatory processes that help to ‘gauge community values’ can in turn empower courts in adjudicating disputes involving culturally complex aesthetic considerations.Footnote 160 Thus, complaints about unlovely activities, such as landfill sights or scrap metal businesses, are not placed outside the realms of justiciability. This is particularly important given that judicial forays into adjudication of the beautiful are enmeshed with economic considerations about property values or dominated by costly aesthetic expertise. Opening up aesthetic considerations to community deliberations democratizes beauty by helping to ensure that it is no longer a value that can be wielded only by the politically privileged.
Our article is not designed to write blueprints for reform, but we can already identify some interesting precedents that might assist in tackling some governance challenges. The recently reformed governance framework for the Tasmanian Wilderness World Heritage Area (TWWHA), a huge region covering 15,800 square kilometres, has forged new ground in accommodating Aboriginal aesthetic values, with the inclusion of better consultation protocols and shared decision making with local Aboriginal representatives.Footnote 161 Previously, the TWWHA’s aesthetic values were shaped narrowly around a terra nullius ‘wilderness paradigm’ and a commodified aesthetics catering to eco-tourism. At the international level, as Alice Palmer has researched,Footnote 162 treaty secretariats and conferences on nature conservation and climate change are creating more space for deliberation about aesthetic values. This might go further by changing the composition of participating delegations and working with artists to re-imagine how to address the upheavals of the Anthropocene.
Furthermore, this article has cautioned that references to natural beauty risk importing an anthopocentric ‘special’ versus ‘ordinary’ dichotomy in environmental protection, thereby undermining efforts over recent decades to shift protection towards an ecocentric approach that upholds nature’s integrity for its own sake. Recent New Zealand legislative reforms give some natural places their own legal personality, protected by fiduciary regimes that require trustees to speak for the aesthetic and other values of those places.Footnote 163 The New Zealand reforms were designed not with beauty in mind but rather to settle historical grievances for the theft of indigenous territories, but the legal model adopted might be considered analogously to help in fostering greater respect for nature’s intrinsic value. Whether the New Zealand model will be less anthropocentric in practice, given that decisions about aesthetic and other values remain the province of a board of trustees, remains for further enquiry.
In sum, beauty is a language by which we enter into aesthetic relationships rather than just admire objects. It may never be a global lingua franca, but we should improve its status in local and transnational environmental law as a vital process that enriches the existing ways of knowing and protecting the biosphere.
